June 19, 2006

As highlighted by this list, the Eighth Circuit's affirmance today of yet another above-guideline sentence in US v. Lyons, No. 05-2416 (8th Cir. June 19, 2006) (available here), is hardly news. Somewhat more newsworthy is the Eighth Circuit cursory discussion of burdens of proof in US v. Johnson, No. 06-1056 (8th Cir. June 19, 2006) (available here).

As noted in the posts linked below, a few other circuits have recently given quite thoughtful and extensive consideration to the argument that some guideline enhancements after Booker call for finding under a heightened burden of proof. (The Third Circuit in Grier devoted 68 pages to this issue in a split ruling, and the Ninth Circuit needed 19 pages for its unanimous Staten ruling.) But as demonstrated by the paragraph below, a single sentence apparently suffices to address this important issue in the Eighth Circuit:

Johnson asserts that the sentencing enhancements violated his due process rights and that the proper standard of proof should be beyond a reasonable doubt. Alternatively, he requests that we at least adopt a clear and convincing standard in cases in which enhancements have a "disproportionate impact on the sentence." It is clearly established in this circuit that sentencing enhancements must be proven by a preponderance of the evidence, however. United States v. Garcia-Gonon, 433 F.3d 587, 593 (8th Cir. 2006) (citing United States v. Pirani, 406 F.3d 543, 551 n. 4 (8th Cir. 2005) (en banc)).

Critically, neither Garcia-Gonon nor Pirani addressed Johnson's alternative argument to apply clear-and-convincing standard to some enhancements (which is the approach recently reaffirmed in the Ninth Circuit in Staten). Apparently, the application of a civil burden of proof for even contested issues having a disproportionate impact on the sentence does not give the Eighth Circuit panel even a moment's pause.

Comments

guess even the 7th cir is coming around with this 6/6/06 unpublished opinion US v. Sam, Nos. 05-2190 & 05-2418. Nonetheless, the concerns that Lamorie raises, and which we discussed in Spiller, have troubled us before, and we have repeatedly admonished prosecutors “not to indict defendants on relatively minor offenses and then seek enhanced sentences later by asserting that the defendant has committed other more serious crimes for which, for whatever reason, the defendant was not prosecuted and has not been convicted.”

Indeed, we have expressed longstanding concern over the so-called “aggregation rule,” which “grants the government a fearsome tool in drug cases” by permitting prosecutors to charge a defendant with only minor-quantity drug crimes, which may be easily proven, but then seek to enhance the sentence dramatically through relevant conduct, which requires only proof
by a preponderance of the evidence at sentencing. Duarte, 950 F.2d at 1263.

Despite our concerns with this dubious prosecutorial practice, we have not yet
stricken a sentence solely on the basis that the ratio of relevant conduct-based drug amounts is excessively high in comparison to the charged amount. Instead, we have found violations of the aggregation rule only when the government has failed to
establish that the relevant conduct was part of the same course of conduct or common
scheme or plan as the convicted offense.

In any event, the circumstances of this case do not suggest that the government was engaging in the type of conduct here that has concerned us in prior cases, i.e.,
bootstrapping a high sentence via uncharged conduct that was either unrelated to the convicted conduct or based upon a thin reed of evidence that could barely withstand a preponderance of the evidence standard, much less beyond a reasonable doubt. Cf. Bacallao, 149 F.3d at 721; Duarte, 950 F.2d at 1263-64. And although there may come a time when a sentence is deemed unreasonable in the post-Booker sentencing regime
based solely on a high ratio of relevant to charged conduct, we decline to find that this case meets that threshold.

Posted by: welch | Jun 19, 2006 4:58:33 PM

As a matter of policy, the ballooning of sentences based on the finding of unindicted conduct by a preponderance of the evidence is very troubling. It introduces precisely the kind of sentencing disparities that the guidelines were intended to (but failed to) prevent.

The question facing an appellate court, however, is whether it offends Booker, and given Justice Breyer's "guidelines-friendly" remedial opinion, I am not sure that it does.